In New York, a family offense petition is the official name for a restraining order or a personal protection order. When a person commits a prohibited act against a family member, the family member can petition the court for the order of protection. The order both provides for immediate penalties against the offender and provides for future protection for the victimized family member.
Qualifying offenses for a family offense petition include the following:
A family member includes a blood relative or someone who is related by marriage. Step-siblings, step-parents and step-children count as family members. Ex-spouses count, too, so you may file a family offense petition regarding an ex-husband or ex-wife. If the parties are unmarried but have a child in common, they are considered family for the purposes of filing a family offense petition.
When a person files a family offense petition, the court hears the case as soon as possible. The court should review the case immediately. If the court finds that there’s good cause to believe that the allegations are true, they can put a temporary order in place. A temporary order:
An arrest warrant is appropriate in cases where the court believes the victim may be in immediate danger.
The person who is the subject of a family offense petition is called the respondent. The respondent can agree to allow the court to issue a protection order. If they don’t agree, the just conducts a hearing on the facts alleged in the petition. If the judge agrees that the allegations are true, the judge decides what order to enter. If you want to appeal it, speak to our federal appeals lawyers.
The hearing to decide what order to enter is called a disposition hearing. The disposition hearing may occur immediately, or the judge may take time to gather information. If the judge doesn’t believe that the allegations are true, the judge dismisses the petition.
The court can choose from a range of possible disposition orders. A disposition order can include one or more of the following provisions:
If the court enters a protective order, the protective order may contain any of these requirements:
The court can sentence the respondent to jail for up to six months for each violation of the order. The family court can also refer the matter to criminal court. A respondent who violates the order may lose their right to own a firearm. The accused person has a right to the services of counsel at all stages of the case. In family court, a petitioner may file their own petition with or without the assistance of counsel. In criminal court, the district attorney may work on behalf of the petitioner.
In virtually any family, disagreements occur. However, in some families, disagreements turn into serious situations and lead to dangerous consequences. Because of this, those who are affected have a legal remedy known as a family petition. Used for a variety of situations, it allows an individual to gain legal protection from another person, receive compensation for child support, or other actions ordered by a court.
Reasons to File a Family Petition
If one family member claims another family member committed certain acts against them or another member of the family, a family petition may be filed. These acts include:
–Assault or attempted assault
To file a family petition, it’s important to remember that a “family member” is defined legally as people related by blood or marriage, were formerly married, or those who are unrelated but have a child together.
What Happens Once a Family Petition is Filed?
When a family petition is filed, several things begin to happen from a legal standpoint. For example, on the day the petition is filed, the petitioner has the right to an immediate court appearance. If this occurs and the judge determines “good cause” exists, a temporary order of protection or child support may be issued. The protection orders stay valid until the respondent or the person alleged to have committed the abuse appears in court, and if the petitioner is deemed to be in immediate danger, the judge can issue a warrant for the respondent to be brought to court immediately. While most of these petitions are filed in Family Court, they can also be granted by a criminal Court if circumstances dictate.
What Happens Next?
After the petition is filed, the respondent has various options. They can admit the allegations are true, deny the allegations, or simply consent to the order of protection. However, if the respondent denies the petition’s allegations, the judge will set a time for a fact-finding hearing. If after this hearing the judge determines the allegations to be true, a time is set for a dispositional hearing. However, before this occurs, the judge will likely adjourn court so that additional information can be gathered regarding the capacities, conditions, and surroundings of the individuals involved in the matter. But if the allegations are deemed to be untrue, the judge will dismiss the case.
The Dispositional Hearing
At a dispositional hearing, the judge issues a dispositional order which can include numerous requirements. These can include suspending the judgement for six months, placing the respondent on probation for as much as one year, requiring the respondent to complete drug treatment, alcohol treatment, and/or anger management classes, pay restitution up to $10,000, or make the Final Order of Protection good for an additional two to five years, depending upon the severity of the offense.
Final Order of Protection
If a judge issues a final order of protection, not only will it be good for up to five years, but it will also contain very specific conditions the respondent must adhere to, or be faced with criminal charges that can result in jail or prison sentences. Some of the most common requirements found in final orders of protection include:
–Staying away from petitioner and their children
–Paying petitioner’s medical bills for injuries sustained due to abuse
–Staying away from schools and places of employment of petitioner and children
–Refrain from injuring or killing pets owned by petitioner and children
–Participate in various types of treatment programs
Along with these requirements, the court may also include in the final order of protection times that the respondent may remove personal property from a residence, as well as times they may be permitted to visit children, if the court deems this can be done in a safe manner.
Violating the Protective Order
If the respondent violates the order of protection, the court has various options. These can include modifying the protective order, transferring the case to criminal Court, and revoking the respondent’s license to carry a firearm. And along with these options, the respondent can be sentenced up to six months in jail for each act committed that is deemed to be in violation of the order.